IN RE B.M.

Appellant’s Petition for Review

Cal.May 25, 2017

5242153 semeent FILED MAY 25 2017 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Jorge Navarrete Clerk In re B.M., a Person Coming ) Deputy Underthe Juvenile Court Law ) Supreme Court ) No. ) THE PEOPLE ) COA No. B277076 ) Plaintiff and Respondent, ) Ventura Superior ) Court No. 2016025026 VS. B.M., Defendant and Appellant. e a e a e Appeal from The Superior Court of Ventura County The Honorable Brian J. Back, Judge Presiding PETITION FOR REVIEW OF DECISION OF THE COURT OF APPEAL SECOND APPELLATEDISTRICT, DIVISION SIX By Appointmentofthe Second District Court of Appeal Donna Ford Attorney at Law (CA State Bar No. 131924) 3435 E. Thousand Oaks Blvd., No. 3152 Thousand Oaks, CA 91362 Phone: (818) 427-3090 Email: DonnaFordLaw@gmail.com Attorney for Appellant/Petitioner IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re B.M., a Person Coming Underthe Juvenile Court Law Supreme Court Zz 2 THE PEOPLE COA No. B277076 Plaintiff and Respondent, Ventura Superior Court No. 2016025026 VS. B.M., Defendant and Appellant. N e e N e e N e e e e e e e e e e e e e e e e e s w e Appeal from The Superior Court of Ventura County The Honorable Brian J. Back, Judge Presiding PETITION FOR REVIEW OF DECISION OF THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION SIX By Appointmentof the SecondDistrict Court of Appeal Donna Ford Attorney at Law (CA State Bar No. 131924) 3435 E. Thousand Oaks Blvd., No. 3152 Thousand Oaks, CA 91362 Phone:(818) 427-3090 Email: DonnaFordLaw@gmail.com Attorney for Appellant/Petitioner TABLE OF CONTENTS Page TABLE OF AUTHORITIES 2 PETITION FOR REVIEW 4 QUESTIONS PRESENTED FOR REVIEW 5 NECESSITY FOR REVIEW ° PROCEDURAL HISTORY OF THE CASE AND FACTS 6 ARGUMENT 7 1. Review is required because the published decision in this 7 case is in direct conflict with the published decision in the case of In re Brandon T. (2011) 191 Cal. App. 4th 1491, which holdsthat a butter knife is not a deadly weapon, and disagreementas to how the issue should be resolved will result in inconsistent decisions of the trial courts. 2. Review is required because the constitutional rights of 12 petitioner, a minor, were violated whenthe officer failed to read her Miranda rights before questioning her. 19 CONCLUSION TABLE OF AUTHORITIES Cases: Arizona v. Fulminante (1991) 499 U.S. 279 California v. Hodari D. (1991) 499 U.S. 621 Carella v. California (1989) 491 U.S. 263 Chapmanv. California (1967) 386 U.S. 18 Collazo v. Estelle (9th Cir. 1991) 940 F.2d 411, 423-24 (en banc), cert. denied, 502 U.S. 1031 (1992) Dickerson v. United States (2000) 530 U.S. 428 Florida v. Bostick (1991) 501 U.S. 429 In re Brandon T. (2011) 191 Cal. App. 4th 1491 Inre D.T. (2015) 188 Cal.Rptr.3d 273 In re J.G. (2014) 228 Cal. App. 4" 402 J.D.B. v. North Carolina (2011) 564 U.S. 261 Kaupp v. Texas (2003) 538 U.S. 626 Massiah v. United States (1964) 377 U.S. 201 Miranda v. Arizona (1966) 384 U.S. 436 Neder v. United States (1999) 527 U.S. 1 People v. Aguilar (1997) 16 Cal.4" 1023 People v. Beasley (2003) 105 Cal.App.4th 1078 People v. Kopatz (2015) 61 Cal. 462 2 Page 12, 18 13 12 12, 18 18 12, 14 13 5, passim 7 16, 17. 3, passim 15 12 3, passim 11 8, 10 10 13 People v. McCoy (1944) 25 Cal.2d 177 People v. Profit (1986) 183 Cal.App.3d 849 People v. Smith (1963) 223 Cal.App.2d 431 People v. Page (2004) 123 Cal.App.4th 1466 Sheppardv. Rees (9th Cir. 1990) 909 F.2d 1234 United States v. Gaudin (1995) 515 U.S. 506 Yarborough v. Alvarado (2004) 541 U.S. 652 Statutes: Penal Code § 245, subd. (a)(1) Other: Cal. Const., art. I, § 15 U.S. Const., 4 Amend. U.S. Const., 5th Amend. U.S. Const., 6th Amend. U.S. Const., 14th Amend. Levick & Tierney, The United States Supreme Court Adopts a Reasonable Juvenile Standard in J.D.B.v. North Carolina for Purposes of the Miranda Custody Analysis: Can a More Reasoned Justice System for Juveniles Be Far Behind? (2012) 47 Harv.C.R.-C.L. L.Rev. 501 17 11 11 14 5, passim 14 5, passim 5, passim 5, passim 5, passim 16 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT NUMBER THE PEOPLE OF THE STATE ) Crim. B277076 OF CALIFORNIA, ) 7 ) Plaintiff and Respondent, ) Ventura Superior ) Court No. 2016025026 VS. ) ) B.D.M., A minor, ) ) Defendant and Appellant. ) ) Appeal from The Superior Court of Ventura County The Honorable Brian J. Back, Judge Presiding PETITION FOR REVIEW TO: THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Defendant and appellant, B.D.M., a minor(hereafter “petitioner”), respectfully requests that this Court review the published decision ofthe Court of Appeal, Second Appellate District, Division Six, which affirmed his convictions. A copy of the Court of Appeal's opinion, filed April 20, 2017, which affirmed the judgmentis attached as Exhibit A. Petitioner did not file a petition for rehearing. CO RR OD E, o y e i s h a ISSUES PRESENTED FOR REVIEW 1. Review is required because the published decision in this case is in direct conflict with the published decision in the case ofJn re BrandonT. (2011) 191 Cal. App. 4th 1491, which holds that a butter knife is not a deadly weapon, and disagreementas to how the issue should be resolved will result in inconsistent decisionsofthe trial courts. 2. Review is required because the constitutional rights of petitioner, a minor, were violated whenthe officer failed to read her Miranda rights before questioning her. NECESSITY FOR REVIEW Review is sought pursuant to California Rules of Court 8.500 (b)(1) becauseit is necessary to secure uniformity of decisionorto settle an important question of law. PROCEDURAL HISTORY OF THE CASE AND FACTS Atthe time of this incident, petitioner, a minor recently had completed 11th grade with passing grades, and has expressed a desire to graduate high school and becomea nurse. (CT 49.) She also volunteered at a local convalescent home. (CT 49.) Petitioner’s mother was “camping out of town for the weekend,” and petitioner and her twosisters, all minors, remained homewith no adult supervision. (CT 42.) While the mother was gone, oneofpetitioner’s sisters changed the locks to prevent petitioner from entering the premises with her boyfriend. (CT 42.) When petitioner returned home and discovered that her sister had changed the locks, she entered through a window,andthe girls argued, which led to petitioner picking up a butter knife during the argument. (RT 14-15, 31.) On August 12, 2016, after a contested hearing, the trial court sustained the juvenile wardship petition, Cal. Welfare & Inst. Code § 602, finding true the allegation that petitioner committed felony assault with a deadly weapon(a butter knife) in violation of Cal. Penal Code § 245, subd. (a)(1). (CT 33; RT 89.) Additional facts will be incorporated into the argument as needed. ARGUMENT I REVIEW IS REQUIRED BECAUSE THE PUBLISHED DECISION IN THIS CASEIS IN DIRECT CONFLICT WITH THE PUBLISHED DECISION IN THE CASE OF IN RE BRANDONT.(2011) 191 CAL. APP. 4TH 1491, WHICH HOLDS THAT A BUTTER KNIFEIS NOT A DEADLY WEAPON, AND DISAGREEMENTAS TO HOW THE ISSUE SHOULD BE RESOLVED WILL RESULTIN INCONSISTENT DECISIONS OF THE TRIAL COURTS. Review is required in this case because the Court of Appeal expressly decided not to follow the published opinion in In Re Brandon T. (2011) 191 Cal.App.4" 1491, which held that a butter knife was not a deadly weapon for purposes of Cal. Penal Code, 245, subd. (a)(1). (Opinionat 9.) Another published opinion cites Jn re BrandonT, but differed factually from Jn re BrandonT., in that the knife in that case “had a sharp blade,” and “had someone bumpedinto orstartled the minor, or had he simply lost his balance, the sharp, ‘pointy’ knife could have caused serious injury.” (In re D.T. (2015) 188 Cal-Rptr.3d 273.) Again, the butter knife in the present case was not sharp or pointy. Many unreported cases havealso cited In re Brandon T. Thus,there is now a conflict in the law, and the opinion in this case causes disagreementas to how the issue should be resolved, and will result in inconsistent decisionsofthe trial courts. The case of Jn re Brandon T. applies directly to this case, and was the law at the time of the incident andthetrial in this matter. The minor petitioner in the present case did not use the butter knife in a manner capable of producing, and likely to produce, death or great bodily injury. Thefailure to follow the Jn re Brandon T. decisionis a violation of the minorpetitioner’s constitutional rights. The California Supreme Court pointed out “the distinction between instrumentalities which are “weapons”in the strict sense of the word, such as guns, dirks, etc., and those instrumentalities which are not weaponsin that sense, such as ordinary razors, pocket-knives or other sharp objects.” People v. McCoy (1944) 25 Cal.2d 177, 188.) For the category of instruments which are not weaponsperse, the “character as a ‘dangerous or deadly weapon’” may beestablished for purposes of that occasion. (People v. McCoy, supra, 25 Cal.2d at 188.) The inquiry in determiningifthe butter knife constitutes a deadly weaponis whether the minorpetitioner used it “in a mannerasto be capable of producing and likely to produce, death or great bodily injury.” Un re Brandon T., supra, 191 Cal. App. 4th 1496.) In cases where the victim felt a “pointy object touch” the neck, there wassufficient evidence that the object was a deadly weapon because “a pointed object,” “at the victim’s neck,” is capable of producing death or great bodily injury. (dn re 8 BrandonT, supra, 191 Cal.App.4"at 1497, citing People v. Smith (1963) 223 Cal.App.2d 431, 432 [a knife]; People v. Page (2004) 123 Cal.App.4th 1466, 1469 [“a sharp, pointy” pencil].) The Court of Appealcites People v. Aguilar (1997) 16 Cal.4" 1023, 1028-29, a California Supreme Court case whichsets forth two requirements for an object to be considered a deadly weapon: (1) that it be used in a manner “capable of producing” death or great bodily injury and (2) that it be used in a manner“likely to produce” death or great bodily injury. (Opinion at 7.) The court of appeal rejected the law of In Re BrandonT. thatthe butter knife is not inherently deadly, and stated that the 32 66minorpetitioner “could have” “committed mayhem uponthe victim’s face.” However, in the present case the minorpetitioner did not commit mayhem onthe victim’s face, and in fact was notlikely to because she was at the victim’s feet. Applying the standard in the presentcase, “the butter knife did not produce great bodily injury, which is a ‘significant or substantial injury.’” In fact, the butter knife could not have caused death or great bodily injury. The butter knife was not “capable of” great bodily injury because it was rounded, not pointy, and was not designed to cut or pierce objects. (RT 29.) The butter knife in the present case was the same type of knife as that of In re Brandon T, “. . . about three and a quarter inches long, with a 9 10 rounded end andslight serrations on one side.” (See In re Brandon T., supra, 191 Cal. App. 4th 1496.) Petitioner’s sister testified that that the butter knife was not “sharp,” with “small ridges” along one side (RT 29), and described the butter knife as “small,” “the type of knife that you would use to butter a piece oftoast.” Norwasthe butter knife “likely to” produce great bodily injury as it wasnot used near the neck or face. Petitioner held the butter knife, “just had it in her hand,” but she never touchedhersister’s skin with the butter knife. (RT 16, 20, 24.) Thesister testified that the butter knife did not touch any part of her body. (RT 15-16; 24.) Un re Brandon T., supra, 191 Cal. App. 4th at 1497; see also People v. Beasley (2003) 105 Cal.App.4th 1078, 1087 [broomstick and plastic vacuum attachment usedto strike victim, causing bruising to arms, shoulders and back, not used in manner capable of producing, and likely to produce, death or great bodily injury, even though victim had bruising, because “Beasley did not strike her head or face with the stick, but instead used it only on her arms and shoulders.”].) In the presentcase, the butter knife (1) was not pointy, (2) did not touch the victim’s neck, and (3) did not pierce, scratch, or penetrate the skin. Thus, the butter knife was not a deadly weapon. Thus, even under the definition set forth in People v. Aguilar (1997) 16 Cal.4™ 1023, 1028- 10 11 29, the butter knife in this case was not a “deadly weapon,” and the minor could not constitutional be convicted of violating Penal Code § 245, subd. (a)(1). In the present case, the butter knife is not inherently a deadly or dangerous weapon. The minorpetitioner did not use the butter knife ina mannercapableof, and likely to, produce death or great bodily injury. Thus, the minorpetitioner could not constitutionally be convicted of violating Penal Code § 245, subd. (a)(1). In the presentcase, the failure to follow Jn Re BrandonT. violated petitioner’s constitutional rights, the due process clause ofthe Fifth, Sixth and Fourteenth amendments, which denies the state the power to deprive the accused ofliberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. (U.S. Const, 5", 6" and 14th Amend.; Neder v. United States (1999) 527 U.S. 1 [Errors and omissions in elements of the offense or theories ofliability]; Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234 [6th Amen. & due processrights to notice of charges]; United States v. Gaudin (1995) 515 U.S. 506.) “The Due Process Clause of the Fourteenth Amendmentdenies States the power to deprive the accused ofliberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. Jury instructions relieving States ofthis burden violate a defendant's due processrights. Such directions subvert the 11 12 presumption of innocence accorded to accused personsandalso invade the truth-finding task assigned solely to juries in criminal cases.” (Carella v. California, (1989) 491 U.S. 263, 265.) The error violated the minor petitioner’s constitutional rights, and the error was not harmless. (Chapman v. California (1967) 386 U.S. 18, 24.) Therefore, petitioner seeks review bythis court. I. REVIEW IS REQUIRED BECAUSE THE CONSTITUTIONAL RIGHTS OF PETITIONER, A MINOR, WERE VIOLATED WHEN THE OFFICER FAILED TO READ HER MIRANDARIGHTS BEFORE QUESTIONING HER The constitutional rights of petitioner, a minor, were violated because the officer failed to read the minor her Mirandarights before detaining and questioningher, in violation of due process and her 4", 5" and 6 Amendmentrights. ((U.S. Const., 5th Amend.; see also Cal. Const., art. I, § 15; Miranda v. Arizona (1966) 384 U.S. 436; Dickersonv. United States (2000) 530 U.S. 428 [Sth Amen.self-incrimination privilege]; Massiah v. United States (1964) 377 U.S. 201 [6th Amen.right to counsel, andinterrogation after right to counsel has attached, voluntariness, promises of leniency,threats, etc.]; Arizona v. Fulminante (1991) 499 U.S. 279 [Due process].) A detention followed by questioning like in the present case triggers Miranda,at least with minors. 12 13 The Court of Appeal cited and discussed the totality of the circumstances standard “in determining whether a person wassubjected to custodial interrogation.” (Opinion at 5-6.) However, the court did not discuss that petitioner was a minor, and did not consider that the reasonable person test must consider the perspective of a minor, not an adult. The United States Supreme Court has affirmed the “commonsense” conclusion that “children ‘generally are less mature and responsible than adults' [citation]; that they ‘often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them’ [citation]; that they ‘are more vulnerable or susceptible to ... outside pressures’ than adults. [Citation.] Addressing the specific context of police interrogation, we have observed that events that ‘would leave a man cold and unimpressed can overawe and overwhelm ladin his early teens.’” (J.D.B. v. North Carolina (2011) 564 U.S. 261, 270.) Thus, the “very real differences between children and adults” must be factored into any assessment of whether a minor was subject to a custodial interrogation. “(T]he crucial test is whether ... the police conduct would ‘have communicated to a reasonable person that he wasnotatliberty to ignore the police presence and go abouthis business.’” (Florida v. Bostick (1991) 501 U.S. 429, 437; California v. Hodari D. (1991) 499 US. 621, 628.) “The due process [voluntariness] test takes into consideration ‘thetotality 13 14 of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.’” (Dickerson v. United States, 530 US. at 434.) An interrogation is custodial when “a person has been taken into custody or otherwise deprived of his freedom ofaction in any significant way.” (People v. Kopatz (2015) 61 Cal. 4"62,80, citing Miranda v. Arizona, supra, 384 U.S.at p. 444.) The test for Miranda custodyis, “would a reasonable person havefelt he or she wasnotat liberty to terminate the interrogation and leave.” (Yarborough v. Alvarado (2004) 541 U.S. 652.) “The age of a child subjected to police questioning is relevant” to determining whether a defendant has been taken into custody for purposes ofMiranda v. Arizona (1966) 384 U.S. 436, and that “a child's age ‘[could] affect [] how a reasonable person’ in the suspect's position ‘would perceive his or her freedom to leave’” and that “a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go.” U/.D.B. v. North Carolina (2011) 564 U.S. 261.) A juvenile's ageis a factor in the reasonable-person analysis of Fifth Amendmentcustody, and may implicate “other areas of criminal procedure, including voluntarinessofwaivers of rights and seizure inquiries” as well as areas of substantive criminal law, such as “blameworthinessof [the subject's] conduct and/or state of mind.” (Levick 14 15 & Tierney, The United States Supreme Court Adopts a Reasonable Juvenile Standard in J.D.B. v. North Carolina for Purposes of the Miranda Custody Analysis: Can a More ReasonedJustice System for Juveniles Be Far Behind? (2012) 47 Harv.C.R.-C.L. L.Rev. 501, 517, fn. 121.) “Ourhistory is replete with laws and judicial recognition that children cannot be viewed simply as miniature adults.” (J.D.B. v. North Carolina, supra, 564 U.S. 261.) “... The tests for custody under the Fifth Amendmentand detentions under the Fourth Amendmentboth focus on howreasonable persons would perceive their interaction with the police.” (see Kaupp v. Texas (2003) 538 U.S. 626, 630-631 [“[A] group ofpolice officers rousing an adolescent out of bed in the middle of the night with the words ‘we needto go and talk’ presents no option but ‘to go’”]; In Re J.G., supra, 228 Cal. App.4th at 412 [court concludedthatofficer’s request that juvenile sit on the curb resulted in a detention].) In the presentcase, the officer had arrived at the scene looking for the minorpetitioner because of the 911 call from her sister. Officer Reynosa saw the minorpetitioner, a female “matching the description [he was] given prior to” his arrival. (RT 51.) Officer Reynosa asked the minor petitioner to identify herself. After identifying the minor, the officer then detained her by ordering her to sit on the bumperofthe police car so that he could question her, without a parent or guardian present, aboutthe incident. 15 16 (RT 51.) Petitioner obeyed the order, and then began to cry as she sat on the bumper. (RT 51-63.) The officer ran a records check to confirm the minorpetitioner’s identity. He conveyed to the minor that she was suspected of unlawful activity, and told her that he received a call of an assault with a deadly weapon inside of the residence, based on a report of hersister stating that the minorpetitioner tried to stab her in the residence. (RT 54, 57.) Officer Reynosa asked the minorto tell him what happened inside the house, specifically asking her questions pointed questions related to the butter knife. (RT 57, 63.) The officer specifically questioned the minorpetitioner about whether or not she committed assault with a deadly weapon. (RT 54, 57.) The officer did not give the minor petitioner her Miranda warnings. Essentially, the officer asked the minor to “confess,” without giving her any Miranda advisements. In the present case, even if the officer’s initial encounter (asking her name) with the minorpetitioner began as consensual, it “turned into a 39 66detention,” “as the minutes passed,” and “as the police presence and show of force grew,” such that at the time the officer asked the minorpetitioner to sit on the police car bumper, and asthe officer persisted with “pointed” and “increasingly intrusive” questions about the butter knife and an alleged assault with a deadly weapon,“a reasonable minor”in petitioner’s circumstances would not havefelt free to end the encounter. (See In Re 16 17 J.G. (2014) 228 Cal.App.4" 402, 411.) The totality of the circumstances would have conveyed to a reasonable person — a juvenile - that he or she wasnotfree to refuse the request. The scenario may have been differentif the officer had informed the minorpetitioner that she wasfree to decline to cooperate, and that she was free to leave. However,the officer did not do that in the present case. The officer failed to give the minorpetitioner any advisements that she wasfree to leave, free to get an attorney, and free to refuse to speak to him. (cf People v. Profit (1986) 183 Cal.App.3d 849, 879-800 [fact that federal agent “affirmatively advised the defendants on four occasionsthat they did not have to speak to him and were free to leave” supported conclusion that no detention occurred].) The very fact that the officer ordered the minor to “sit on the bumper”of the police car, in essence, was an order by a law enforcementofficial, to a minor, that she was notfree to leave. A detention followed by questioning like in the present case triggers Miranda, especially with minors. Whether a defendant was in custody for Miranda purposesis a mixed question of law and fact. (People v. Kopatz, supra, 61 Cal.4at 80.) When reviewinga trial court's determination regarding a custodial interrogation, “an appellate court . . . . independently determines whether, given those circumstances,” the interrogation was custodial. (People v. Kopatz, supra, 61 Cal.4th at 80.) 17 18 Facts that are material to determine that the interrogation was custodial in this case include that: (1) petitioner was a minor; (2) she was detained and questioned outside her home; (3) she was confronted by police, armed and in uniform; (4) she wasordered tosit on the police car bumper; (5) she was asked accusatory and incriminatory questions; (6) with no other persons, parent or legal guardian, present. The court of appeal did not consider that petitioner was a minor, which must be a factor in the “totality of the circumstances.” The reasonablepersontest is what a child would feel, not an adult. Under these circumstances, the officer’s order that the minor petitioner sit on the bumperofthe police car resulted in a custodial detention suchthat she did not feel free to leave, and the subsequent interrogation about the suspected illegal activity, and the butter knife, without Miranda advisements, violated her constitutionalrights. In the present case, the motion to suppress was improperly denied by the trial court, and the error was prejudicial under Chapmanv. California (1967) 386 U.S. 18. The error was not harmless. The harmlesserrorrule does apply to confessions obtained in violation of the Fifth Amendment. (Arizona v. Fulminante (1991) 499 U.S. 279; Collazo v. Estelle (9th Cir. 18 19 1991) 940 F.2d 411, 423-24 (en banc), cert. denied, 502 U.S. 1031 (1992) [“It is impossible to conclude from the foregoing as well as from the rest of the evidentiary record that Collazo's coerced statementdid not contribute to his conviction.”].) Thus, petitioner, a minor, requests that this court review hercase, as the statements should have been suppressed because they were obtained in violation of her constitutional rights, and that error was not harmless. CONCLUSION For the foregoing reasons, petitioner urges this Court to grant review of her case. Petitioner’s federal Constitutional rights were violated and petitioner, a minor, urges reversal of the judgment. Dated: May 22, 2017 Respectfully submitted, /s/ Donna Ford DONNA FORD Attorney at Law (CA State Bar No. 131924) 3435 E. Thousand Oaks Blvd., No. 3152 Thousand Oaks, CA 91362 Phone: (818) 427-3090 Email: DonnaFordLaw@gmail.com Attorney for Appellant/Petitioner B.M., A Minor 19 20 CERTIFICATE OF WORD COUNT I hereby certify that pursuant to Rule 8.204 of the California Rules of Court, this brief is produced using 13-point Romantype and contains approximately 4369 words, whichis less than the total words permitted by the rules of court. Counselrelies on the word count of the computer program usedto preparethisbrief. Date: May 22, 2017 /s/ Donna Ford Donna Ford 20 21 PROOF OF SERVICE Re: People v. B.M., A minor, COA Crim. B277076 (Ventura Superior Ct. No. 2016025026) I, DONNA FORD,declare as follows: Iam a citizen of the United States, a resident of Los Angeles County, and am over18 years of age. I am not a namedparty to the above- entitled action. My business address is 3435 E. Thousand Oaks Blvd., No. 3152, Thousand Oaks, CA 91362. On this day, I served a copy of the attached PETITION FOR REVIEW OF DECISION OF THE COURT OF APPEAL SECOND APPELLATEDISTRICT, DIVISION SIX,as indicated either by electronic mail, or by placing a true and correct copy thereof in a sealed envelope,first-class postage prepaid, in the United States mail at Thousand Oaks, California, addressed as follows: Kamala D. Harris, Attorney General California Attorney General docketingLAawt@doj.ca.gov The Hon. Brian J. Back California Appellate Project c/o Clerk of Court — Criminal 520 S. Grand Avenue,4th Floor Ventura Superior Court . Los Angeles, CA 90071 800 South Victoria Avenue capdocs@lacap.com Ventura, CA 93009 Clerk of Court, California Court of Gregory D. Totten Appeal District Attorney Second District, Div. Six, Court 800 South Victoria Avenue 300Fast Santa Clara Street Ventura, CA 93009 Ventura, CA 93001 I declare, under the penalty of perjury, that the foregoingis true and correct. Dated: May 22, 2017 /s/Donna Ford DONNA FORD 21 22 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX In re B.M., a Person Coming 2d Juv. No. B277076 Under the Juvenile Court Law. (Super. Ct. No. 2016025026) (Ventura County) THE PEOPLE, COURT OF APPEAL — SECONDDIST. Plaintiff and Respondent, F I L E D Apr 20, 2017 V. JOSEPH A. LANE,Clerk D. Kaster Deputy Clerk B.M., Defendant and Appellant. A commonbutter knife is designed to cut and spread butter. In the hand of a person bent on assaulting another,it may be a usefultoolto inflict great bodily injury. Consistent with an express direction from the California Supreme Court (People v. McCoy (1944) 25 Cal.2d 177, 188-189) and time-honored rules on appeal, we conclude that the trial court’s factual finding that the instant butter knife was a deadly weapon mustbe affirmed on appeal. To the extent that In re Brandon T. (2011) 191 Cal.App.4th 1491 holds to the contrary, we respectfully disagree. 23 As weshall explain, an assault with a deadly weapon is complete when the defendant, with the requisite intent, uses an object in a mannerwhichis capable of producing great bodily injury upon the victim. Such an assault is not negated by 1. the victim’s use of a shield or body armorto prevent injury; or 2. ineptness or poor aim in the use of the object; or 3. lack of successin inflicting great bodily injury. B.M.appeals from a juvenile court order declaring her a wardof the court and ordering her to serve 90 days ina juvenile justice facility. After a contested jurisdictional hearing, the court sustained a petition charging that appellant committed a felony assault with a deadly weapon (a knife) in violation of Penal Codesection 245, subdivision (a)(1). Relying on Mirandav. Arizona (1966) 384 U.S. 436 (Miranda), appellant contends the juvenile court erroneously admitted statements she madeto the police. She also contends that the evidenceis insufficient to support the finding that the knife she used was a deadly weapon. These contentions are without merit and weaffirm. , Facts Appellant, seventeen years old, was angry because she could not get inside the family home. Her mother had changed the locks to the house. She entered the house through a window and wentinto her sister’s (S.M.) bedroom. Shetried to pull S.M.’s hair out, threw a telephoneat her, andleft the room.1 ‘This uncharged assault showsthat appellant intended to use any object available to harm hersister. In theory, throwing a telephone at another person with the requisite intent can be an assault with a deadly weapon. (See People v. Cordero (1949) 92 Cal.App.2d 196, 199 [beer bottle as a club or a missile].) 24 She returned carrying “a small... knife, like a butter knife.” It was“[t]he type of knife that you would use to buttera piece of toast.” The knife was metal and about six inches long. The blade was aboutthree inches long. “It wasn’t... sharp” and had “small ridges” along oneside. S.M.was lying on her back on a bed when appellant attacked her with the knife. She covered herself with a blanket for protection. The knife struck the blanket near herlegs a “few times.” Throughthe blanket, S.M.felt pressure from the knife. On a scale of one to ten with one being the least amountof pressure, the pressure was “[ml]aybelike a five or a six.” Instead of “pok[ing]” S.M. with the knife, appellant made a “slicing kind of’ motion. Appellant was “yelling” at S.M. who wasterrified by the attack. When appellantleft the bedroom, S.M. telephoned the police. The recording of her frantic call for help to the 911 operator wasreceived by the juvenile court. In response to the telephonecall, Officer Ryan Reynosa drove to S.M.’s residence. On the way there, he was given a description and the nameof the suspect. He saw appellant outside the residence “and asked her if her name was [B.M.].” Appellant replied, “Yes.” Officer Reynosatestified,“I then asked her to walk over towards me andsit against the bumper by my marked patrol vehicle so J could talk to her about what had happened.” Appellant complied with his request. Officer Reynosa told appellant that he “had gotten a call of a fight inside the house and [he] asked her what... happened.” Appellant explained as follows: she arrived at the Appellant also assaulted anothersister giving her a bloody nose. 25 residence and had been unable to open the front door with her key. She believed that S.M. had rekeyed the lock. Appellant entered the residence through an unlocked window. She was “very upset.” Appellant “grabbed ... what she described as a butter knife off of the kitchen counter and went upstairs to confront her sister [S.M.].” Upon entering hersister’s bedroom, appellant “began yelling at [S.M.]... and... was holding the butter knife in her right hand and waspointingit at S.M.” When S.M.told her to get out and threatened to call the police, appellant made “downward stabbing motion[s]” toward “the bedding ... that S.M. had pulled up over her.” Appellant’s intent was “to scare S.M.” Appellant “then ran back downstairs and put the knife in the kitchen sink.” Appellant testified as follows: She had beenliving at the residence for two weeks. After entering the residence through a window,she grabbed a butter knife in “the heat of the moment.” She “wanted to scare [S.M.].” While holding the knife, she approached S.M., who wassitting on her bed. Appellant was “yelling at her and cussingat her andtelling her, . . . ‘why did you... change the locks?” When appellant “got close .. . with the knife, (S.M] covered herself with the blanket and started kicking her legs.” Appellant was “pretty sure [the knife] probably did touch the blanket[] because [S.M.] was kickingit, and [appellant] was right there, like, touching the bed.” The partof the knife that touched the blanket was the blade - “[t]he part where you would...cut... toast and stuff.” Alleged Miranda Violation Appellant claims that her “constitutional rights were violated” because Officer Reynosa did not inform herof “her Mirandarights before detaining and questioning her.” Based on 26 the alleged Mirandaviolation, appellant moved to exclude her statements to Officer Reynosa. The juvenile court denied the motion. It found that appellant was not subjected to custodial interrogation. “We apply a de novo standard of review to a trial court’s denial of a motion to suppress[sic, exclude] under Mirandainsofaras the trial court’s underlying decision entails a measurementof [as here] undisputed facts against the law.” (People v. Riva (2003) 112 Cal.App.4th 981, 988.) “Tt is settled that Miranda advisements are required only whena person is subjected to ‘custodial interrogation.’ [Citations.]” (People v. Davidson (2013) 221 Cal.App.4th 966, 970.) “An interrogation is custodial when ‘a person has been | taken into custody or otherwise deprived of his freedom ofaction in any significant way.’ [Citation.] The test for Miranda custody is, “would a reasonable person have felt he or she was not at liberty to terminate the interrogation andleave.” [Citation.] The objective circumstancesof the interrogation are examined, not the “subjective views harbored by either the interrogating officers or the person being questioned.” [Citation.]” (People v. Kopatz (2015) 61 Cal.4th 62, 80.) In determining whether a person was subjected to custodial interrogation, “(t]he totality of the circumstances is considered and includes ‘(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanorof the officer, including the nature of the questioning.’ [Citation.] Additional factors are whether the officer informed the person he or she wasconsidered a witness or suspect, whether there were restrictions on the suspect’s freedom 27 of movement, whether the police were aggressive, confrontational, and/or accusatory, and whetherthe police used interrogation techniques to pressure the suspect. [Citation.]” (People v. Davidson, supra, 221 Cal.App.4th at p. 972.) Based on the “totality of the circumstances,” we conclude that appellant was not subjected to custodial interrogation. Officer Reynosa did not place her underarrest or handcuff her. He wasthe only officer present. The detention was not prolonged and occurred in a noncoercive atmosphere outside appellant’s residence. Officer Reynosa’s questioning was not aggressive, confrontational, or accusatory. He simply told her that he “had gotten a call of a fight inside the house and [he] asked her what... happened.” Reynosa did not use interrogation techniques to pressure appellant. He testified, “She was just telling me what happened.” “[A] reasonable person in [appellant’s] situation would have believed [s]he wasfree to leave at any time and to terminate the interview. ... The [juvenile] court correctly denied [appellant’s] motion to suppress[sic, exclude] the interview.” (People v. Kopatz, supra, 61 Cal.4th at p. 82.) Sufficiency of the Evidence “The same standard governsreview of the sufficiency of evidence in adult criminal cases and juvenile cases....” Cn re Matthew A. (2008) 165 Cal.App.4th 537, 540.) “In reviewing a criminal conviction challenged as lacking evidentiary support, “the court must review the whole record in the light most favorable to the judgment below to determine whetherit discloses substantial evidence—thatis, evidence whichis reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. 999 28 [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 396.) “A finding ... based upon a reasonable inference. . . will not be set aside by an appellate court unless it appears that the inference was wholly irreconcilable with the evidence. [Citations.]’ ... ‘([W]hen the evidence gives rise to conflicting reasonable inferences, one of which supports the findingof the trial court, the trial court’s finding is conclusive on appeal. [Citation.]’ [Citations.]” (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 851: see also Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “As used in [Penal Code] section 245, subdivision (a)(1), a ‘deadly weapon’is ‘any object, instrument, or weapon whichis used in such a mannerasto be capable of producing and likely to produce, death or great bodily injury.’ [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matterof law; the ordinary use for which they are designed establishes their character as such. [Citation.] Otherobjects, while not deadly per se, may be used, under certain circumstances, in a mannerlikely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerousis used as such,thetrier of fact may consider the nature of the object, the mannerin whichit is used, and all other facts relevant to the issue. [Citations.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) The issue is whether a reasonable trier of fact could find beyond a reasonable doubt that appellant used the butter knife “in such a mannerasto be capable of producing and likely to produce, death or great bodily injury.” (People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) We conclude that a reasonable trier of fact could and did make the requisite finding. 29 Whydoes a person who assaults another person pick up an object to do so? The answeris apparent: to do greater harm than can be donewith fists or feet. The victim of an assault with an object apprehends a greater degree of danger than a victim whois not assaulted with an object. The use of an object in an assault increases the likelihood of great bodily injury. In this instance, the Legislature has provided for greater punishmentfor the would-be assailant who utilizes an object in such a manneras to be “capable” of producing great bodily injury.” Here, sitting as trier of fact, and utilizing the power and ability to draw inferences from the evidence, the trial court concluded that the six-inch metal butter knife could be used to slice or stab, even though it was not designed for such. It was used in a manner“capable” of producing great bodily injury. This factual finding is not “wholly irreconcilable” with the evidence. (Phillips v. Campbell, supra, 2 Cal.App.5th at p. 851.) This appeal “turns” on this factual finding. It matters not that the victim wasable to fend off great bodily injury with her blanket. This self defense does not negate appellant’s assault. Similarly, that appellant was not adept at using a knife does not inure to her benefit. She could haveeasily inflicted great bodily injury with this metal butter 2There is a historical exception to this observation. When Abraham Lincoln wasaccosted by a detractor, his bodyguardof tremendousphysical strength, Ward Hill Lamon, knocked the assailant unconscious. He did this with a single blow to the head with his fist. Lincoln reportedly told Lamonthat in the future, he should give the victim a chance: “Hereafter, when you have occasion to strike a man, don’t hit him with yourfist! Strike him with a club or crowbar or something that won’t kill him.” 30 knife and just as easily have committed mayhem upon the victim’s face. The trial court expressly found that it was only “lucky” that there were no injuries. In People v. McCoy, supra, 25 Cal.2d 177, our Supreme Court quoted with approval the Court of Appeal opinion in People v. Raleigh (1932) 128 Cal.App. 105, which said, “When it appears... that [such] an instrumentality . .. is capable of being used in a ‘dangerous or deadly’ manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a ‘dangerous or deadly weapon’ maybe thusestablished,at least for the purposesof that occasion.” (Jd. at pp. 108-109; see also People v. Graham (1969) 71 Cal.2d 303, 328.) As indicated, we part company with the opinion of In re Brandon T., supra, 191 Cal.App.4th 1491. The attorney general submits, and we agree, that this case was “wrongly decided.” This opinion has the earmarksof impermissible reweighing of the evidence. There, the appellate court drew inferences away from the factual finding under review. The ' defendant slashed at the victim’s face and neck with a butter knife and used sufficient force to break the knife. (/d. at p. 1497.) Even from the bare recital of facts, it is apparent that the butter knife was “used in a mannerso as to be capable” of producing great bodily injury. That it broke during the assault preventing further stabbing should not inure to the defendant’s benefit. The brutality of the attack in In re Brandon T. should not be minimized with hindsight. The extent of the injuries, or lack of them,is relevant but not determinative. (People v. Aguilar, supra, 16 Cal.4th at p. 31 1028.) The Jn re Brandon T. opinion gives undue emphasis to the lack of injuries. The fallacy of this focus is easily shown by the typical assault with a deadly weapon with a firearm when the defendant has poor aim. (See, e.g., People v. Bradford (1976) 17 Cal.3d 8, 20.) Disposition The orders appealed from are affirmed. CERTIFIED FOR PUBLICATION. YEGAN,Acting P. J. Weconcur: PERREN,J. TANGEMAN,J. 10 32 Brian J. Back, Judge Superior Court County of Ventura Donna Ford, under appointmentby the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent. 33